TaxTMI 
TaxTMI 
TaxTMI 
2024 (3) TMI 1209
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....ule. Rule made returnable forthwith. 3. Heard parties by consent for final disposal. 4. The petition questions the order dated 2.2.2022 passed by the respondent no. 2 rejecting of the objections raised by the petitioner to the issuance of the notice under Section 148 of the Income Tax Act and the subsequent notice dated 27.3.2021 (page 28), on the ground that the order of re-assessment of income tax for the Assessment Year 2016-2017, is not on account of any mistake, but is on account of change of opinion, which is impermissible in law. 5. Shorn of unnecessary details. The facts relevant for the present petition are as under: 1. The petitioner had on 4.10.2016 filed an E-return for the Assessment Year 2016-2017 declaring a total income....
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.... Assessee. The total income of the assessee and the tax payable accordingly was computed and demand notice with penalty notice under Section 274 read with section 271(1)(c) of the Income Tax Act was directed to be issued to the petitioner. 8. Though the petitioner had filed an appeal against this assessment order dated 28.12.2018 before the Commissioner of Income Tax (Appeals), the same came to be withdrawn in the light of the acceptance of the application of the petitioner under the vivad se viswas scheme 2020. 9. On 27.3.2021 (page 28) notice under section 148 of the Income Tax Act came to be issued by respondent no. 2 to the petitioner, informing it that the department proposes to assess/reassess the income for the Assessment Year 2016....
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....ment and notice, contends, that this is a case in which there is no change of opinion, but a mistake committed, While making earlier assessment for which reason, the re-opening of the assessment and the consequent order impugned is clearly justified. She relies upon Gruh Finances Ltd VS. Joint Commissioner of Income-Tax(Assessment) (2000) SCC online Gujarat 451 in support of her contention. 13. In M/s Indian and Eastern Newspaper Society (supra) it has been held that in the case of reappraising the material considered by him during the original assessment the Income Tax Officer if he discovers that he has committed an error in consequence of which income has escaped assessment, it is open to him to reopen the assessment, however, an error ....
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.... concept of change of opinion as an inbuilt test to check abuse of power by the Assessment Officer, hence after 1.4.1989 the Assessment Officer has power to reopen, provided there is "tangible material" to come to the conclusion that there is escapement of income from assessment and reasons must have a live link with the formation of the belief. 15. In Aroni Commercial Ltd(supra) after noticing Kelvinator of India Ltd (supra), learned Division Bench of this Court has held that a change of opinion does not constitute justification and/or reasons to believe that income chargeable to tax has escaped assessment. 16. The change in the language of section 147 of the Income Tax Act, can be discerned from the following table:- Before Amendment A....
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....ny income chargeable to tax, in the case of an assessee, has escaped assessment for any assessment year, the Assessing Officer may, subject to the provisions of sections 148 to 153, assess or reassess such income or recompute the loss or the depreciation allowance or any other allowance or deduction for such assessment year (hereafter in this section and in sections 148 to 153 referred to as the relevant assessment year)." 17. It would be material to note that, the deletion of the expression "has reason to believe" as inserted by the amending Act 1989 in section 147 has taken place, by the Finance Act, 2021, w.e.f. 1.4.2021. Since the present petition, deals with the reopening of the assessment for the financial year 2016-2017, the positio....
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....ffering the sales amounting to Rs. 3,07,96,304/- to tax in its return of income, which are contained in paragraph 5.2, which are the same reasons as found in the assessment order dated 28.12.2018. This would clearly indicate, that considering the law which was prevailing on the date on which notice under section 148 of the Income Tax Act dated 27.3.2021 was issued, a mere change of opinion, could not be the reason for reopening of the assessment. 20. Though Ms. S. Linhares, learned counsel for respondent no. 2 places reliance upon Gruh Finances Ltd (supra) that in our considered opinion, is a case based upon the absence of conscious consideration of the material on record at the time of the first assessment on account of which it has been ....